“Silent Concert”

On Tuesday, 5/3, at 12 noon, musicians held a “SILENT CONCERT/Demonstration For Artists Rights” outside the Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York.

Unfortunately, couldn’t be there myself — on tour “showing my skills to pay my bills”: but I don’t mind writing in airports/train stations. And so:

The event coincided with hearings on section 512 of the Digital Millenium Copyright Act (DMCA) being held by the U.S. Copyright Office (USCO) inside the courthouse.

The DMCA is the 1998 law governing copyright in the digital domain. Loopholes in the DMCA have left artists effectively powerless to prevent massive for-profit infringement, leading to the growth of a huge and damaging black market (yup kids, that’s what we call corporate ad-based for-profit piracy: and that’s exactly what it is) in our work. If the devil is in the details, section 512 of the DMCA is our devil’s house.

The purpose of the SILENT CONCERT was to “ask Congress to fix the DMCA in order to protect artists’ rights in the digital age.”

The actual event consisted of working artists/musicians standing with their instruments in a “silent concert” symbolizing “the music left un made… because…[section 512 of the DMCA] has permitted massive for-profit infringement that has devalued our music.”

The “silent” musicians handed out literature calling for changes in the “Safe Harbor” clause of DMCA which “permits online service providers to profit from infringement… without liability” claiming Safe Harbors should be denied to hosting platforms which ignore “red flag” knowledge of infringement on their site.

The literature urged Congress to update the DMCA takedown notice system so that each uncontested takedown notice applies permanently and automatically to all identical or nearly identical files. This way, artists won’t have to play whac-a-mole with thousands of repeating infringements in order to exercise their rights.

The leaflet goes on:

“The technology already exists to protect creators fairly, in a way that will NOT interfere with free speech, and will NOT “shut down the internet!”

Have copyright protection and take-down systems been created that reasonably address civil libertarian concerns?

YouTube manages to run its own automated “Content ID” software without appearing to engage in ‘censorship’.

Unfortunately access to this protective software comes at a cost.

Independent artists must give YouTube access to their entire catalogue and use Content ID to monetize — thereby making YouTube money – in order to get access to its protection from infringement.

Q: What kind of racket profits by selling ‘protections’ against infringements they themselves make possible?

A: A protection racket.

Q: Why – other than the fact that its parent corporation is worth 500 billion and this is the USA — is this legal? Why isn’t YouTube required to protect the rights of ALL those on its premises, like any other business?

A: Because of the Safe Harbor clause of section 512 of the DMCA.

The ‘silent’ musicians called on Congress to further the development of “Standard Technical Measures” (STM’s) that would enable an automated ‘takedown’ system to work, and, as an incentive, to deny Safe Harbor to hosting platforms which, once STM’s are established, refuse to adopt them.

They tried to remind law makers:

“We’re not asking for a special privilege, but a basic American right: a fair market for our work.”

This protest was a small part of a new wave of activism by creators who are no longer afraid to speak out directly about reforming the DMCA. In March, I helped gather signatures for “A Creators’ View of the Music Ecosystem and Notice and Takedown”. [a document circulated by the artists’ rights group c3 (Content Creators Coalition) and presented to the US Copyright Office, (see the list of signers here: DMCA Signatures.pdf)] . The response was off the hook… everyone I asked signed.

The signers weren’t just “Rock Stars”, or functionaries from some ‘built out’ advocacy organization, and this wasn’t just “the industry”. They were working musicians/ artists of all genres, ages, and levels of commercial success.

Almost none would have signed 3 years ago.

This increase in activism is the opposite of what one would expect if the rosy tech industry claims of digital economic uplift for creators were true. It presents a challenge to the ‘optimistic’ statistical inferences drawn by Steven Johnson [“The Creative Apocalypse That Wasn’t” NY Times, 8/23/2015].

No working artist I know believes such claims. If one thinks for a moment, the idea that the music market — or ANY market — can somehow flourish while an open black market makes its products available for free — is not only counterintuitive, its absurd.

“more people are hearing [our] music than ever before. So you would think that you would be making more money than ever before. But in actuality we’re making less money than we’re ever made, because people are allowed to use our material for next to nothing everywhere in the world now. So its actually worked against us. Only a few people in the record industry have actually made money off this deal. The rest of us are all canaries in the coal mine….” [Steve Jordan intvw by Joel Schlemowitz 5/3/16]

The toxic economic environment created by the DMCA’s loopholes is what musicians working in recording and recording related live performance deal with every day.

And we don’t need Mr. Johnson’s macro economic statistical weatherman to know which way the wind blows.

So yeah, I’ll stay on the road longer each year to make up for lost recording income. I’m one of the lucky few able to do so. God help younger, working class, or less established artists trying to break through now (or older artists unable to take the grind, or composers, or parents of young children etc etc). Current conditions serve as an entry barrier to all the above.

Is that a ‘creative apocalypse’? I guess not if you can afford to pay for your own recordings + $5-10,000 for a publicist + lose money on touring for awhile. Or if you only like music made by those who can.

(talented poor kids willing to sign exploitive “360” deals can play too. Life-long indebtedness may be their personal “apocalypse”. But the rest of us can enjoy their music – for free if we want. Sweet!)

And speaking of touring vs those who believe that black markets help producers: I wonder exactly what the latter think is happening to conditions on the touring circuit now that virtually every artist has to go on the road more each year like I do? Supply and demand anyone?

Oh, nevermind.

Sorry I missed the Silent Concert/demo. But you can be assured that until Congress stands up to the digital black marketeers, and restores a fair market for creators’ work in the digital domain, there will be plenty of others. We’ll be back… we have nowhere else to go.

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M Ribot is a guitarist, recording musician, and artists rights activist with the Musicians Action group.

Note: the 5/3 event was intended to deliver a message to Congress and the public, and was in no way meant as a criticism of the U.S. Copyright Office, whose work in gathering stakeholder testimony deserves the respect of all parties.

Note: the Silent Concert was sponsored by the Musicians Action group musiciansactiongroup@yahoo.com. However, the views expressed in this article are solely those of the author.

Further reading:
Composer Maria Schneider has finally come out and said what every artist I know who’s informed on the issues thinks:

“… for the vast majority of the artistic community, including me, and every musician I know (and I know thousands), YouTube is a resounding disaster.
There’s no use in beating around the bush, so I’m going to cut to the chase – I’m of the firm opinion that YouTube should immediately lose its DMCA “safe harbor” status.”

What does that mean? It means that like every other US businesses, YouTube and other hosting platforms should be held responsible for the damage caused by infringements they knowingly permit, or actively to encourage, on their premises.